Petition for Writ of Certiorari — Crossley v. Liberty Bank & Trust Co.

Supreme Court brief1997

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wepmet OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

LARRY A. CROSSLEY

Petitioner,

vs.

LIBERTY BANK & TRUST CO., THOMAS J.

HROMATKA, C.E.O., HERTZ FARM MANAGEMENT

INC., GARY LOOS AS RECEIVER, FARMERS CO-OP

ASSOCIATION FOREST CITY, FARMERS CO-OP

ELEVATOR CO. LELAND, DON SEVERSON, GARY

STERLING, RONALD G. PYLE, RONALD PENNING,

AND YET TO BE NAMED JOHN DOES,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the

Eighth Circuit.

PETITION FOR WRIT OF CERTIORARI

LARRY A. CROSSLEY

Non-Lawyer Petitioner

Route 1, Box 45

Carlos, MN 56319

(320) 732-2290

QUESTIONS PRESENTED

1. Certiorari should be granted to

supervise the departure from the accepted

and usual course of judicial proceedings.

2. Certiorari should be granted to

resolve the conflict among the Eighth

Circuit and the State Court relative to

the application of Title 42 U.S.C. §1983,

1985(3), 1986, Title 7 U.S.C. §2000 et.

seq. and Iowa Code 561, 656, 554, 646,

680, I.R.C.P. 256.

PARTIES TO THE PROCEEDING

Petitioner, Larry Crossley, is a

resident of Todd County, Minnesota.

Crossley was the plaintiff in the United

States District Court for the Eighth

Circuit proceedings of this case and was

the Apellant before the United tates

Court of Appeals for the Eighth Circuit.

Respondents Liberty Bank & Trust Co.

and Thomas J. Hromatka C.E.0., the baéankx is

a corporate owned bank existing by virzue

of the laws of the State of Icwa.

Respondent Liberty Bank does business in

Winnebago County, Iowa and was a cGetéencaent

to the action in the lower esuct

preceedings. Thomas J. Hromatka was the

acting C.E.O. and a resident in Winnezras

County and also a defendant in the icwer

court proceedings. Liberty Bank & Trust

Co and Hromatka were also an Arcrellee

before the United States Court of i:sreais

for the Eighth Circuit.

Respondents Hertz Farm Manegement

Inc. and Gary Loos as receiver, existing

by virtue of and acting under the laws of

the State of Iowa whose office is in Cerro

Gordo County, Iowa and does business in

North Central Iowa including Winnebago

County, Iowa, were defendants ‘to the

action in the lower court proce¢dings.

Gary Loos was acting as receiver in the

Iowa District Court proceedings. Eertz

and Loos were also Appellees before che

United States Court of Appeals fcr

Eighth Circuit.

iii

Respondents, Farmers Co-op Assoc.

Forest City, Farmers Co-op Elevator Co.

Thompson, Farmers Co-op Elevator Co.

Leland, the grain elevators are

cooperatives organized and operating by

virtue of the laws of the State of Iowa.

Rake Cooperative Elevator of Rake Iowa own

Thompson and Leland Cooperative Elevators.

Respondents Don Severson, Gary Sterling,

Ronald G. Pyle and Ronald Penning are or

were acting as elevator managers or

assistant managers for the defendant grain

elevators and all are or were doing

business in Winnebago County Iowa and were

defendants to the lower court proceedings.

The three grain elevators were |

cooperatives and managers or assistant ;

managers were also Appellees before the ;

United States Court of Appeals for the

Eighth Circuit. |

There are John Doe and Jane Doe

defendants that were to be named prior to

‘rial as discovery was completed.

There are no other parties to this

action.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..+2«-+see¢ee8-s i

PARTIES TO THE PROCEEDING ...... dd

TABLE. OF CONTENIB « eo so ene uvnee 89

TABLE OF CITATIONS « «© © «© = s © 8 « » V

OP iRauee Bee 6 6 et lw eet eee; 1

STATEMENT OF JURISDICTION 2

STATUTE INVOLVED 2

Stace OF tmp CABS »« © © es wh we ew 9

REASONS FOR GRANTING THE WRIT .... 16

CONCLUSION 29

APPENDIX

Appendix A - Opinion of the

United States Court of Appeals

for the Eighth Circuit Filed

pul hs Bee ee se ee ee we la

Appendix B - Opinion of the

United States Court of Appeals

for the Eighth Circuit Filed

GeRURSY IGsbeee «6 a a we eee ws 2a

;

imaBLE OF CITATIONS

Page

Cases Cited:

ANDERSON VS. BOYD, 714 F.

UO sg ke le a iy ig ye 25

ANDERSON V. LIBERTY LOBBY, INC.,

477 U.S. 242,248, 106 S. Ct.

2505, 2510, 91 L. Ed. 2d 202

eee 6 As. eee et ee ow oa 19

BENNETT V. ELDON MILLER, INC.,

SMe MMI Se gc katy ak ea ay 20

BECKER V. GUSTAFSON,

es ee BET ig egg wa ie 20

CELOTEX CORP. V. CATRETT

BUG Bs Co. 2000 (49UG) 6 « ow 6 ss 16,18

CHAPMAN VS. CALIFORNIA,

ER + PE ee 26

COLE V. GILL, 1863,

eR ° ¢ am nO rere aa ee re 19

COMMUNITY STATE BANK V. COTTINGTON,

3 OM A Rs Serre eae 20

CONTINENTAL GRAIN CO V.

FRANK SEITZINGER STORAGE,

837 F. 2d 636, 838

(Eighth Circuit 1988) ...... 18

EX PARTE VIRGINIA,

BUG Wells OEP ESETS) 4 © «+ 8 ws 27

TABLE OF CITATIONS-continued

Page

FEDERAL LAND BANK V. FAUGHT BROS.,

468 N.W. 2d 793, 795

[2ONe 2eee! « 6 0 ks Se a wee 20

GENERAL MOTORS CORP. VS.

BLEVINS, 571 F. Supp. 38

(1956) : = 6 es 26

GREEN V. FORNEY, 1907,

434 iowa 316, i431 Noms 976 . « « 19

GREENLAND V. FAIRTRON CORP.

SOO N.W. 2d 36, 37

tC” Bi 2 a ee re er 21

GRIFFIN V. BRECKENRIDGE,

403 U.S. 88, 102-03 (1971) ... 23

ROLDEN vs. HARDY,

LG SB. tha. Dae eae «= eee 27

HUGHES vs. ROWE,

i073 S. Cr. © (1980) 27

JOHNSON V. SHOPF

G77 U.u. OC seus se 5. Ct

at 2592, 669 F. Supp. 291, 295

(i) ae. Atel. <4) ee ae teeta ee 18

KAYLOR V. FIELDS,

661 F. 2d 1177, 1184

(BSGMGH Ciretee BOA! 6 os © #8. 68 23

vii

TABLE OF CITATIONS-continued

Page

MASSEY V. SMITH,

aoe Be 406 asada, 1356

[Aer SEeeeEe ATs) 5 » 6 & » « 23

MORELLO VS. JAMES,

Cle 0s 2 wee SEOs). gf «he ye 8 21

OLMSTEAD VS. UNITED STATES,

6 3. Cr. SOS (19a0) States . .« « 24

OWEN vs. HAAS,

CEL we Oe See ARP 6 ew ce ee 27

RINALDI vs. YEAGER,

RR MR Oe Bee eee 27

SEBASTIAN V. UNITED STATE,

931 F. 2d 900,904 n.11

(Eighth Circuit 1976), cert.

denied, 429 U.S. 856 (1976) ... 23

SWANK V. ST PAUL CITY RY.

(1895) 61 Minn. 423

63 N.W. 1088: U.S. Moser (1924)

OM TB 4) Pe a eat 24

THREE RIVERS CABLEVISION, INC.

V. CITY OF PITTSBURGH, D.C. Pa.

oe soe ©, oe, Soe. ee 23

UNITED STATES VS. GOOD

REAL PROPERTY, 114 S CT. 492

er: -< = 6g oe we. te. ioe a 25,27

viii

TABLE OF CITATIONS-continued

Page

WILLIAMS VS. DRESSER IND. INC.,

tae Be Bee. 41466 t39ee) « «ss 26

YOST V. DEVAULT,

1859, 9 Iowa 60.

IOWA CODE STATUTE 561.4 .... 19

Statutes Cited:

Se Wee BESOei a \s 6 8 oes 2

ae ak ee 17

Se tabeoex Bees - kok ee ee ee eee

G2. U.S ys BL Pee tel: a oleae kw eee eee

Be Uellees: BOPEE. (e688 ee es eee

Fed. Rules Civ. Proc. Rule 56,

28 U.S.C.A. Federal Civil

Procedure 2461 Oe Las ae en a ee 17

towa Code $554.9307 << .+ ss 22

Iowa Code §561 Sie Sey ae 19,20

Iowa Code §628 a es ah ae Boe 20

[eee Cee Bean eke 468 ee ee 19

Iowa Code §654 ig eh ce 24

TABLE OF CITATIONS-continued

Page

poe GOGe .SOSe §. see 3 8S 24

Other Authority Cited:

ae Pees 3 6 6 Se wR 14,21

Sem aes Sk es 6 aS RS 14

aa ee er ee 14

Fi eS gc Se a ae ee 14

ee I aoe 14,21

OPINIONS BELOW

On January 10, 1996, the United

States Court of Appeals for the Eighth

Circuit issued its opinion, affirming the

decision of the District Court. That

opinion was unpublished.

On July 1, 14996, the United States

Court of Appeals denied the suggestion for

rehearing en banc, and also petition for

rehearing by the panel was also denied.

STATEMENT OF JURISDICTION

Petitioner seeks review of the

opinion of the United States Court of

Appeals for the Eighth Circuit and its

judgment of July 1, 1996. That judgment

affirmed the lowe~- court’s grant of

Summary disposition. Petitioner invokes

the certiorari jurisdiction conferred on

this Court by 28 U.S.C. §1254(1).

STATUTE INVOLVED

42 U.S.C. §1983 provides:

$1983. Civil Action For Deprivation

Of Rights.

Every person who, under color of

any statute, ordinance,

regulation, custom, or usage, of

any State or Territory or the

District of Columbia, subjects, or

causes to be subjected, any

citizen of the United States or

other person within the

jurisdiction thereof to the

deprivation of any rights,

privileges, or immunities secured

by the Constitution and laws,

Shall be liable to the party

injured in an action at law, suit

in equity, or other proper

proceeding for redress. For the

purpose of this section, any Act

of Congress applicable exclusively

to the District of Columbia shall

be considered to be a statute of

the District of Columbia.

42 U.S.C. §1985(3) provides:

§1985(3). Conspiracy To Interfere

With Civil Rights.

(3) If two or more persons in any

State or Territory conspire to go

in disguise on the highway or on

the premises of another, for the

purpose of depriving either

directly or indirectly, any person

or class of persons of the equal

protection of the laws, or of

equal privileges and immunities

under the law; or for the purpose

of preventing or hindering the

constituted authorities of any

State or Territory trom giving or

securing to all persons within

such State or Territory the equal

protection of the Laws; or if two

Or more persons conspire to

prevent by force, intimidation, or

threat, any citizen who is

lawfully entitled te vote, from

giving his support cor advocacy in

a legal manner, toward or in favor

of the election of any lawfully

qualified person as an elector for

President or Vice

President or as a Member of

Congress of the United States; or

to injure any citizen in person or

property on account of such

Support or advocacy; in any case

of conspiracy set forth in this

Section, if one or more persons

engaged therein do, or cause to be

done, any act in furtherance of

the object of such conspiracy,

whereby another is injured in his

person or property, or deprived of

having and exercising any right or

privilege of a citizen of the

United States, the party so

injured or deprived may have an

action for the recovery of damages

occasioned by such injury or

deprivation, against any one or

more of the conspirators.

42 §1986 provides:

$1986. Action For Neglect To Prevent

Every person who, having knowledge

that any of the wrongs conspired

to be done, and mentioned in

section 1985 of this title, are

about to be committed, and having

power to prevent or aid in

preventing the commission of the

same, neglects or refuses so to

do, if such wrongful act be

committed, shall be liable to the

party injured, or his legal

representatives, for all damages

caused by such wrongful act, which

Such person by reasonable

diligence could have prevented;

and such damage may be recovered

in an action on the case; and any

humber of persons guilty of such

wrongful neglect or refusal may be

joined as defendants in the

action; and if the death of any

party be caused by any such

wrongful act and neglect, the

legal representatives of the

deceased shall have such action

therefor, and may recover not

exceeding $5,000 damages therein,

for the benefit of the widow of

the deceased, if there be one, and

if there be no widow, then for the

benefit of the next of kin of the

deceased. But no action under the

provisions of this section shall

be sustained wnicn is not

commenced within one year after

the cause cf action has accrued.

7 U.S.C. $2000

§2000. Homesteac Protection.

(3)The term “homestead property”

means the princiral residence anc

adjoining property possessed and

occupied by a berrower specified

in paragraph (2) of this

subsection, including reasonable

number of farm out buildings

located on the acjoining land that

are useful to the occupants of the

homestead, and nce more than 10

acres of adjoining land that is

used to maintain the family of the

individual.et.sec.

Iowa Code §561.

§561. Homestead.

561.16 Exemption.

The homestead of every person is

exempt from judicial sale where

there is no special declaration of

statute to the contrary. Persons

who reside together as a single

household unit are entitled to

claim in the aggregate only one

homestead to be exempt from

judicial sale. A sinc person may

claim only one homestead to be

exempt from judicial

the purposes of this

“nousenold unit” means

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e created by written

by persons having the

power to convey, expressly

stipulating that it shall be

liable, but then only for a

deficiency remaining after

exhausting all other property

pledged by the same contract for

the payment of debt.

3. Those incurred for work done

or material furnished exclusively

for the improvement of the

homestead.

4. If there is no survivor or

issue, for the payment of any

debts to which it might at that

time be subjected if it had never

been held as a homestead.

Iowa Code §656

§656 Forfeiture Of Real Estate

Contracts.

Iowa Code §554 Uniform Commercial .

Code.

§554.9307, §554.9313, $554.9$315,

Rights of Third Parties-Perfected

and Unperfected Security

Interests-Rules of Priority

Iowa Code §646 Recovery of Real

Property.

§646.23 Growing Crors-Bond. If

the defendant avers that the

defendant has a crop sowed,

planted, or growing on the

premises, the jury, finding for

the plaintiff, and also finding

that fact, shall further find the

value of the premises from the

date of the trial until the first

day of January next succeeding,

and no execution for possession

shall be issued until that time,

et. seq.

§646.24 Writ of Possession.

When the plaintiff shows that the

plaintiff is entitled to the

immediate possession of the

premises, judgment shall be

entered and an execution issued

accordingly.

Iowa Code §680 Receivers.

§680.1 Appointment.

On the petition of either party to

a civil action or proceeding,

wherein the party shows that the

party has a probable right to, or

interest in, any property which

is the subject of the controversy,

and that such property, or its

rents or profits, are in danger of

being lost or materially injured

Or impaired, and on such notice to

the adverse party as the court

shall prescribe, the court, if

satisfied that the interests of

one or both parties will be

thereby promoted, and the

substantial rights of neither

unduly infringed, may appoint a

receiver to take charge of and

control such property under its

direction during the pendency of

the action, and may order and

coerce the delivery of it to the

receiver.

Iowa Rules of Civil Procedure rule 258.

Rule 258. Execution; Duty of

Officer.

STATEMENT OF THE CASE

This matter concerns a state

foreclosure action of real estate

purchased by Donald and Patricia Crosslev

on contract from James and Frances Ballard

in 1973. In April of 1985 Donald and

Patricia Crossley gave Forest City Bank

and Trust co. an assignment for security

purposes of their vendee’s interest in the

property. Forest City Bank and Trust ana

Donald and Patricia Crossley let their

Vendee’s interest go into default on April

1, 1986. With the real estate contract in

Gefault Frances Ballard vendor in Oct. cf

1986 sold certain of and assigned all of

her interest in the property as vendor tc

Larry Crossley.

On October 20, 1988, Liberty Bank and

Trust filed a petition to foreclosure

their vendee’s interest in the real estate

contract in the Iowa District Court which

named Donald and Patricia Crossley and

Larry Crossley and France Ballard as

defendants’ in Case No. 13978.

Defendants, Donald and Patricia

Crossley asserted counter claims against

the Bank for fraudulent misrepresentation

and breach of contract. These defendants

also asserted a counter claim for breach

of an implied dutv of aqood faith and fair

dealing arising out of a bank/customer

relationship. The counter claims were

tried to a jury which found against the

Donald and Patricia Crossley. As a result

of the jury’s verdict, the counter claims

were dismissed by order of Judge Jon

Stuart Scoles in the foreclosure action

filed on October 24, 1990.

On October 24, 1990, the Court

entered its FINDINGS OF FACT, CONCLUSIONS

OF LAW AND ORDER, the court entered

judgment in favor of Liberty Bank and

against Donald and Patricia Crossley in

the amount of 332,324.78, plus interest.

In addition, the order provided that

counsel for the Liberty Bank should

prepare a DECREE OF FORECLCSURE to be

entered by the court.

On May 13, 1991, the court filed its

DECREE IN FORECLOSURE, and provided for

foreclosure of the equitable mortgage.

Liberty Bank set redemption at six(6)

months and WAIVED ANY RIGHT TO A

DEFICIENCY AGAINST THE DEFENDANT’S IN CASE

NO. 13978.

The Winnebago County Court in their

decree in foreclosure never obtained a

judgment against defendants Larry Crossley

or France Ballard.

In its order of the Winnebago County

Court Decree dated May 13, 1991 the Iowa

District Court at p.2 stated:

2. The plaintiff’s equitable

mortgage is established as a lien

against the real estate above

described and is superior and

paramount to the interest, liens

and claims of the defendants,

except to the extent of the

vendor’s interest in the real

estate contract executed on March

23, 1973. The court need not

decide in this proceeding whether

Frances Ballard or Larry Crossley

has legal or equitable title to the

property, because that is not in

issue in this foreclosure action.

The vendor’s interest in the

property, whomever may later be

determined to hold it, is superior

to the interest foreclosed upon by

the plaintiff.

On July 12, 1991, Appellant-

Crossley filed his declaration of

Homestead with the Winnebago County

recorder, homestead book, page 96-

On July 17, 1991, the property was

sold at sheriff’s sale to Liberty Bank,

for the sum 405,271.43, representing the

entire judgment, interest, attorney feeds,

and cost amount to obtain the farmland.

On January 21, 1992, following the

expiration of a six month period of

redemption, Appellee Bank traded in their

writ of possession to get sheriff’s deed

that was issued in favor of Liberty Bank,

the decree stated,

“On expiration of the period of

redemption for the mortgaged real

estate, if possession be not

immediately then surrender (sic) to

the grantee of the sheriff’s deed

to be issued under said execution,

a writ of possession shall be

issued directing the sheriff of

this county to put such

grantee in possession of mortgaced

premises.”

On March 25, 1992, Liberty Bank and

Hertz Farm Management Inc., filed and

served the defendants with a petition in

small claims court on a action for

Forcible Entry and Detainer, Case No. e-

4997-0392.

On April 16, 1992, small claims court

came on for hearing in magistrate court,

Gefendants argued that the magistrate

court did not have jurisdiction.

Magistrate ruled against the defendants

anc order a writ of possession tc ke used

against the defendants immediatei:, and

directed that the defendants Larry, Donald

end Patricia Crossley be removed -r-7n the

premises and that Liberty Bank and Herzz

Farm Management Inc. be put in pessession

thereof.

On April 20, 1992, defendar-= ecsted

bond and filed appeal to the Winneldacc

District Court, hearing was held in May of

192, on the defendants’ appeal.

On June 16, 1992, Judge Sternen

arroll entered the courts rulins énad

filed same on June 17, 1992, cour: gs

concludes that the magistrate did nor }

jurisdiction to hear this case, the

Gistrict court does.” “According iy, the

magistrate’s court ruling should be

reversed and the case dismissed. ‘ourt

goes on to state, “IT IS THEREFORE ORDERED

that plaintiff’s action for FORCISLE ENTRY

AND DETAINER brought in the Towa District

Court Small Claims Division, is

DISMISSED.”

On June 29, 1992, the Appellee

Liberty Bank filed a praecipe for writ of

possession, directing the clerk of court

to issue a writ of possession in

compliance with the decree in foreclosure

dated May 13, 1991, five months after they

had received a sheriff’s deed.

On July 31, 1992, the sheriff of

Winnebago County removed defendants from

their homestead, and without a judgment

against Appellant-Crossley and with

Pppellee Liberty Bank waiving their

judgment against the homestead.

On June 2, 1993, Appellees Liberty

Bank filed and recorded an amended

sheriff’s deed with the Winnebago County

recorder book 281, page 127, and later on

June 17, 1993, Appellee Liberty Bank filed

the amended sheriff’s deed with the

Winnebago County Clerk of Court.

On July 23, 1991, Appellant-Crossley

filed his Federal Complaint where it

showed that the defendants’ had violated

his constitutional rights, violations cf

42 U.S.C. sections 1983, i985, 1986, ana

RICO. On April 6, 1992, Judge Donald E.

O’Brien, Chief Judge of the United States

District Court dismissed Appellant-

Crossley’s Complaint that stated, “IT IS

FURTHER ORDERED that if plaintiff fails in

his attempt to have the Iowa District

Court’s Order of November, 1990,

overturned, he may refile, without payment

of any additional fees, any new and

different claims than those previously

asserted. “This was Case No.C91-3050.

On December 22, 1993, the clerk of

the United States District Court for the

Northern District of Iowa Central Division

__ = ™

gave Aprellant-Crossley a new Case No. 923-

3083.

On June 13, 1994, Appellant-Crosslev

filed his Civil Complaint with Case No.

C93-3083 with violations “liberty” and

“property” rights, “civil rights”,

violations by the defendant-appellees’ cé

the lst, 4th, 5th, 7th, and 14th

Amendments of the United States

Constitution; violations of Title 42

§1983, 1985(3), 1986 and Iowa Code

Statutes 561, 561.21, 561.4, 654, 680,

554, 561.16, 646, I.R.C.P., Rule 258.

On October 27, 1994, Judge Mark W.

EFennett, U.S. District Court Judge filec

his order pursuant to Case No. C93-3085,

eee de=endants’ Motions to Dismiss

Appellant-Cressley’"s Complaint and dia

error in it’s order that states,

% me prior state court

sr and in Crossley I,

ey raised challenges to thé

iety of the foreclosure

dings, the sheriff’s sale,

le of the crops from the i¢s

and the notice of first

This series of legal

which all concerned the

surrounding the foreclosur

he real estate in question, @&

the same actions which Crossley

challenges in this case. The court

has little difficulty concluding

that the claims asserted by

Crossley involve “the same nucleus

of operative fact” previously

litigated in Crossley I and the

Iowa State Courts. Therefore, the

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court finds that Crossley’s claims

against Defendant Liberty Bank &

Trust are barred by operation of

res judicata, and the court shall

grant Defendant Liberty Bank &

Trust’s motion for summary

judgment.”

On November 4, 1994, Appellant-

Crossley filed his motion to court

pursuant to F.R.C.P., Rules 52(b) and Rule

59 with motion, brief and affidavit in

support of, Appellant-Crossley asserted

that the court made factual and legal

errors in its order of October 27, 1994,

in granting defendants’ motions to

cGismiss.

On January 5, 1995, Mark W. Bennett,

United States District Judge denied

szopellant-Crossley’s motion pursuant to

-.R.C.P., Rules 52(b) and Rule 59.

On February 6, 1995, Appellant-

Crossley appealed Judce Mark W. Bennett ~

crder’s to the United States Court of

appeals for the Eighth Circuit, the court

cid error in not fully complying with Rule

=6’s notice requirements.

The case was submitted December 29,

1995 to the United States Court of Appeals

for the Eighth Circuit. The Court of

Fopeals affirmed the holding of the lower

court on January 10, 1996.

Petitioner now seeks the review of

this Court.

REASONS FOR GRANTING THE WRIT

| CERTIORARI SHOULD BE GRANTED TO

SUPERVISE THE DEPARTURE FROM THE

ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS.

Apellant-Crossley alleged violations

of his Liberty and property rights in his

complaint against the named defendant-

appellees. Appellant-Crossiey alleged

deprivation of his homestead by named

defendants and deprivation of his 1992

crops by the named Appellees. The

Appellees filed Rule 12(b)(é) motions to

aismiss and did not file anv type of

answer to Appellant-Crossley’s Complaint.

No Rule 56 motions for summary judgment

were filed by Appellee’s. The Supreme

Court Justice, Rehnquist, held in CELOTEX

CORP. V. CATRETT 106 S. Ct. 2548 (1986),

that: (1) Rule 56(c) mandates the entry of

summary judgment after adeaquate time for

discovery against a party who fails to

make a showing sufficient to establish the

existence of an element essential to that

party’s case as to which that party will

bear the burden of proof at trial; (2)

there is no requirement that moving party

support its motion with affidavits or

other similar materials negating the

opponent’s claim; and (3) nonmoving party

need not produce evidence in a form that

would be admissible at trial in order to

avoid summary judgment. Appellant-

Crossley asked the court for time to do

discovery and Appellant-Crossley was

denied by the Court. Crossley was denied

adequate time to do discovery.

Rule 56 must be construed with due regard

not only for the rights of persons

asserting claims and defenses that are

adequately based in fact to have those

claims and defenses tried to a jury but

also for the rights of persons opposing

such claims and defenses to demonstrate,

in the manner provided by the rule prior

to trial, that the claims and defenses

have no factual basis. Fed. Rules Civ.

Proc. Rule 56, 28 U.S.C.A. Federal Civil

Procedure 2461.

Party seeking summary judgment always

bears the initial responsibility of

informing the district court of the basis

for its motion and identifying those

portions of the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

which it believes demonstrate the absence

of a genuine issue of material fact. Fed.

Rules Civ. Proc. Rule 56(c), 28 U.S.C.A.

The trial court did error in turning

appellee’s motion to dismiss into motion

for summary judgment without notice to

Appellant-Crossley, when no depositions,

answers to interrogatories, and admissions

on file, together with the affidavits, if

any, show that there is no genuine issue

as to any material fact and that the

moving party is entitled to a judgment as

a matter of law. There are numerous

genuine issues of material facts that were

ignored by the District Court. For

example, there was no judgment against

Crossley, Crossley was removed from his

homestead, Crossley was deprived of his

crops, Appellees only filed motions to

dismiss, Howard L. Draper did not timely

file Hertz Farm Management Inc.’s motion

to dismiss, Appellees elevators violated

and ignored the Iowa Code Statutes 554,

et. seq. U.C.C., Liberty Bank’s first

Sheriff’s Deed was void, Liberty Bank used

their writ of possession prior to the

removal of Crossley, Larry Crossley still

has paramount title to subject property,

Liberty Bank has not tendered the full

amount owing on the March 23, 1973 real

estate contract, and the named Appellees

did conspire to deprive Lary Crossley of

his Constitutional Rights. Appellees

defendants did not show that they were

entitled to a judomert as a matter of law.

Summary judgment is proper only “if the

pleadings, depositicns, answers to

interrogatories, and admissions on file,

together with the affidavits, if any, shew

that there is no genuine issue as to any

material fact and that the moving party is

entitled to a judomert as a matter of

law.” CELOTEX CORP. V. CATRETT, 477 U.S.

obi» See, 400 5S, CT. 2548, 2552, 91 L. Ed.

2d 265 (1986); CONTINENTAL GRAIN CO V.

FRANK SEITZINGER STOFAGE, 837 F. 2d 836,

838 (Eighth Circuit 1988). A moving party

is “entitled to judoment as a matter of

law: if the nonmoving party fails to make

a sufficient showing of an essential

element of a claim with respect to which

it has the burden of proof. Id. 477 U.S.

at 323, 106 S. Ct. at 2552 JOHNSON V.

SCHOPF, 669 F.

Supp. 291, 295 (D Minn. 1987). However,

summary judgment should not be granted if

a reasonable jury could return a verdict

for the nonmoving party. ANDERSON V.

LIBERTY LOBBY, INC., 477 U.S. 242, 248,

106 &. Ct. 2505, 2510, 91 L. Ed. 20 202

(1986). The Appellee’s filed Rule

12(b) (6) motions to dismiss and did not

file any type of answer to Appellant-

Crossley’s Complaint. No Rule 56 Motions

for summary judgment where filed by the

Appellees gave no explanation for the

taking of Appellant-Crossley’s homestead

and Appellant’s 1992 crops. Appellant-

Crossley explained to the court that there

were no judgments in the State Court

action against him, and also explained

that the Appellee Bank had waived any

right to a deficiency judgment and

therefore according to IOWA CODE STATUTE

651.16, states, “The homestead of every

person is exempt from judicial sale where

there is no special

declaration of statute to the contrary.”

GREEN V. FORNEY, 1907, 134 Iowa 316, 111

N.W. 976. To merely mark out, plat and

record a tract of ground as a homestead,

is not sufficient to make it such. Its

occupancy and use, as a home, by the

family, are the essential requirements.

COLE V. GILL, 1863, 14 Iowa 527. In order

to render premises occupied by a family

exempt as a homestead, no plat need be

filed. YOST V. DEVAULT, 1859, 9 Iowa 60.

IOWA CODE STATUTE 561.4 Appellant filed

the declaration of homestead with the

Winnebago County, recorder in homestead

book on page 98-9. Appellant-Crossley

also filed with the Winnebago County

recorder an affidavit of right of

possession on July 12, 1991, book 10, page

277-8. IOWA CODE STATUTE 561 AND 628

gives a person that is being foreclosed on

certain rights. “Vendors, who were

authorized to claim as much as “0 acres in

homestead property..

BECKER V. GUSTAFSON, “279 N.W. 2d 744.

Appellant was in possession of the

homestead and resident of the household

unit and Appellees Bank had waived

deficiency judgment on subject property

and therefore can not show that a receiver

was needed or appropriate, BENNETT V.

ELDON MILLER, INC., 106 N.W. 2d 257.

Appellee Hertz Farm Management Inc., has

caused damage to Appellant, Crossley was

forced to pay rent to the receiver on land

that they had no right to possession of,

the receiver canceled Appellant-Crossley’s

insurance policy on the property. THE

SUPREME COURT OF IOWA will allow the

appointment of a receiver in the case of a

deficiency. See COMMUNITY STATE BANK V.

COTTINGTON, 444 N.W. 2d 487, and cases

cited therein. However, the court may not

appoint a receiver where a deficiency has

been waived se¢ FEDERAL LAND BANK V.

FAUGHT BROS., 4€8 N.W. 2d 793, 795 (Iowa

1991). “Where the right to a deficiency

has been waived there exists no right to

appoint a receiver based on a claimed

potential for deficiency.” It is

interesting to note that the same Iowa

District Court Judge heard the Faught case

as well as the Crossley case, in both

cases the District Court Judge appointed

the receiver when any right toa

deficiency judgment had been waived in

both cases.

Appellant-Crossley alleged

Constitutional Violations of “good faith”

and “obligation of contract clause”

guaranteed by the lst and 14 Amendments of

the U.S. Constitution in his Complaint,

which happens to be Constitutional issues,

as Appellant finds support in MORELLO VS.

JAMES, 810 F. 2d 344 (1987) which states:

“dismissal reversed as every

citizen has riaqnt of access to

the courts where oppression

damages on constitutional

grounds are alleged as

allegations must be accepted as

true.”

Like the Old demurrez, a& motion to

dismiss admits the wel! p_eaded facts in

the complaint for the purcecse of testing

their legal sufficiency. CREENLAND V.

FAIRTRON CORP. 500 N.W. 22 36, 37 (Iowa

1993). The motion may net be supported by

its own allegations of facz not contained

in the complaint. Where uron full reading

of Appellant’s complaint it is clearly

alleged of violations of these Amendments

as well as others wherein acts, actions, -

conduct, and policies of tne defendants’

have inflicted severe irreparable damages

upon Appellant and innocent third persons

where the Federal Court cic error in not

meriting denial of Appellees’ motions to

dismiss.

Had the facts been viewed in a light

most favorable to the Petitioner, the

motion for summary judgment would have

been denied. This is because the record

did support issues for trial. Instead the

circuit court acted as a super jury and

decided the facts against the Petitioner.

This was reversible error.

Petitioner submits that certiorari

should be granted because the Eighth

Circuit’s judgment departed from the

accepted and usual role to be performed by

a court on motions for summary judgment.

This case should have proceeded to trial

on the merits. This Honorable Court

should reject the Court of Appeals’

insistence on being a fact finder.

bb s

CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT AMONG THE EIGHTH

CIRCUIT AND THE STATE COURT RELATIVE TO

THE APPLICATION OF TITLE 42 U.S.C.

$1983, 1985(3), 1986, TITLE 7 U.S.C.

§2000 ET. SEQ. AND IOWA CODE 561, 656,

554, 646, 680, I.R.C.P. 258.

Appellent-Crossley dispossessed from his

homestead, they had his crops harvested

and hauled to three local Elevators which

are all named defendants in his complaint,

the named appellee-defendants and managers

had actual knowledge of the “notice of

security interest in farm products” that

is filed with the secretary of State of

Iowa. UCC filings which states “This

notice is tendered pursuant to IOWA CODE

STATUTE 554.9307, as amended, and Public

Law 99-198, para. 1324.” The respondent

Elevators/Managers were in contact with

Liberty Bank & Trust Co. and ignored the

UCCs and issued moneys to Liberty Bank for

Crossley’s grain, Crossley received no

money, there actions are in direct

conflict with Iowa Code §554. “Where

private entity acts in concert with state

actor, private entity is also subject to

liability under this section.” Title 42

U.S.C.A. Statute 1983” THREE RIVERS

CABLEVISION, INC. V. CITY OF PITTSBURGH,

D.C. Pa. 1980, 502 F. Supp. 1118. “To

state a claim under 42 U.S.C. Section

1985(3) a complaint must allege four

elements”, GRIFFIN V. BRECKENRIDGE, 403

U.S. 88, 102-03 (1971), Appellant-Crossley

did alleged all four elements in his

complaint, and has alleged discriminatory

motive on the part of the conspirators.

MASSEY V. SMITH, 555 F. 2d 1355, 1356

(Eighth Circuit 1977). Appellant-

Crossley’s complaint did state a claim

under title 42 U.S.C. section 1983, 1985

and 1986. “A cause of action under

section 1986 is dependent on a valid claim

under section 1985. SEBASTIAN V. UNITED

STATE, 531 F. 2d 900,904 n.11 (Eighth

Circuit 1976), cert. denied, 429 U.S. 856

(1976); KAYLOR V. FIELDS, 661 F. 2d 1177,

1184 (Eighth Circuit 1981).

Appellant filed new and different

claims against different appellee’s on

June 13, 1994, with the court, the

complaint alleged violations of due

process of law, liberty and property

rights which are Civil right, which

appellees’ defendant’s violated

Appellant’s lst, 4th, 5th, 7th, and 14th

Amendments of the United States

Constitution, violations of Iowa Code

Statutes 561, 561.21, 561.4, €54, 680,

554, 537, 561.16, 646, I.R.C.P., Rule 258,

Title 28 U.S.C. 1331, 1332, and 1343,

Title 42 U.S.C. §1983, 1985, and 1986.

All violations took place after Judge

O’Brien’s order dated April 6, 1992, the

District Court would not acknowledge this

fact and the fact that the Respondents

were not named Defendants in my first case

in Federal District Court. The Winnebago

District Court order dated October 13,

1993, on the 1992 crops was én erroneous

decision of the court “an erroneous

decision does not bind the parties in a

subsequent action on a different cause of

action” SWANK V. ST PAUL CITY RY. (1895)

61 Minn. 423 63 N.W. 1088: U.S. Moser

(1924) 266 U.S. 236.

Appellant-Crossley filed his motion

pursuant to Rule 59 with the hopes that

the search for truth in the light of

justice be accomplished pursuant to truth,

justice and adjudication cn full material

facts without “conclusions” used which are

untrue, unfounded and without statute or

constitutional foundations where everyone

should be aware of two (2) basic

principles in jurisprudence with keeping

in mind the warning expressed by Justice

Brandeis in his dissenting opinion as

found in OLMSTEAD VS. UNITED STATES, 48 S.

CT. CT. 564 (1925) states,

“If the government becomes a

law-breaker, it breeds contempt

for its laws.”

Defendant’ s-Appellee’s herein, one

and all, have once again brought fraud

upon this Court by the very findings of

their pleadings as filed. These are

“conclusions” as dismissal of Appellant’s

complaint was entered without Appellant’s

issue’s being heard so the court based its

“conclusion” had to be based either on

“political reason” or “moral personal

reason”, both which are not founded with

either the “commands” of the Constitution

of the State of Iowa which is found in a

very recent decision by the United States

Supreme Court, Justice Kennedy wrote so

very clear of the mandates of all federal

courts which were denied to Appellant.

See UNITED STATES VS. GOOD REAL PROPERTY,

114 S CT. 492 (1994) where the following

statement is made as

“Certain wrongs affect more than

a single right and, accordingly,

can implicate more than one of

the Constitution’s commands.

Where such multiple violations

are alleged, we are not in the

habit of identifying as a

preliminary matter the claim’s

‘dominant’ character. Rather,

we examine each constitutional

provision in turn.”

Appellant-Crossley herein hopefully pray

the facts will surface in the search for

the truth, since Appellant’s allegations

must be accepted as true is supported

against all Defendant-Appellees as seen in

ANDERSON VS. BOYD, 714 F. Supp. 906 (1983)

wherein is found the following:

“Dismissal reversed as judges

and court officials are not

immuned from civil rights

allegations and a motion to

dismiss for failure to state a

claim does not override civil

rights allegations as complaint

must be liberally construed as

allegations must be accepted as

true.”

Appellant’s allegations in complaint that

has been buried without redress which are

Constitutional rights of Appellant by the

7th Amendment of the U.S. Constitution and

the Constitution of the State of Iowa.

Appellant’s issues is reversible error

where as found in GENERAL MOTORS CORP. VS.

BLEVINS, 571 F. Supp. 38 (1956) opinion

reveals that,

“Rignt and justice is right to

contract protection of the 14th

amendment as protection is a

Mandated constitutional right.”

Appellant finds suproort in WILLIAMS VS.

DRESSER INDUSTRIES INC., 795 F. Supp. 1144

(1992) states:

“Concealment of material facts

may amount to fraud... where the

concealment is of intrinsic of

the article which the other

party by the exercise of

ordinary prudence and caution

could not discover (cit.); and

misrepresentation may be

perpetrated by acts as well as

worcs and by artifices designed

to mislead.”

Discovery is a due process right

wherein dismissal of Appellant-Crossley’s

complaint did deprived Crossley of “due

process” in civil matter, CHAPMAN VS.

CALIFORNIA, 87 S. CT. 824 (1967) that

states:

“Constitutional rights requires

due process.:

See also EX PARTE VIRGINIA, 100 U.S. 339

(1879) Wherein the entire opinion came

down to the following:

“14th Amendment requires “due

process” and “equal protection”

of property rights.:”

“Due process” is a “peoples right”

see HOLDEN vs. HARDY, 18 S. CT. 833 (1898)

wherein as seen in HUGHES vs. ROWE, 101 S.

CT. 6 (1980) holds:

“Action without full hearing is

a “due process” violation and a

civil rights violation as well.”

The Federal Court’s decision in this case

has been in conflict with all of the cases

cited so far in this petition, the merits

of this case have been totally overlooked,

in RINALDI vs. YEAGER, 86 S. CT. 1497

-(1966) where it states,

“equal protection is

constitutional right where

denial of access to the courts

is found.”

Appellant-Crossley finds support in UNITED

STATES vs. GOOD REAL PROPERTY, supra, as

it must also be respectfully seen by

review of OWEN vs. HAAS, 661 F. 2d 1242

(1979) states:

Summary judgment reversed as

implied power with gross

negligence combined with

deliberate indifference in local

body is a person with proper

jurisdiction with right of

discovery with failure to state

a claim motion reversed as

parties have right to amend

complaint as there is alleged

actual and implied knowledge

found is civil rights complaint

that should not be dismissed at

pleading stage.”

Curiously the Eighth Circuit engagéd

in no real historical or legislative

analysis of § 1983, 1985(3), 1986. If it

had it would have had to address the cases

cited in this petition. No analysis of

Crossley’s liberty and property rights

were addressed by the Federal District

Court and undoubtedly not reviewed by the

Eighth Circuit Court of Appeals.

Petitioner submits that certiorari

should be granted because the Eighth

Circuit judgment is in conflict with the

previous Circuit Court decisions and

United States Supreme Court decisions,

along with the Iowa Supreme Court

decisions. This case should have

proceeded to trial on the merits. This

Honorable Court should reject the Court of

Appeals decisicn and supervise the

application of Iowa Code and Federal Code.

CONCLUSION

One would have to conclude,

therefore, that the highest Court of the

land has indeed, provided a clue to

whether the irregularities of the District

Court should bar redress of federal

statutes, Civil Rights, and Constitutional

Rights to citizens of this Country.

Petitioner maintains that it would be

illogical to conclude that this Court

would wish to see an inconsistent

application of the cases decided by this

Honorable Court and Lower Courts. Why

would this Honorable Court abandon the

Constitution as to some Federal Statutes

and not do so as to others? Of course,

there is no good reason to suppose, that

would be this Court’s approach; which

makes it important for certiorari to be

granted in this case to settle the

conflict that has persisted among the

circuits on this issue.

Application of the decision in this

case undermines the very purpose of 42

U.S.C. §1983,§1985(3), and §1986. This

position is taken by several Courts of

Appeal. For this reason, Petitioner

submits that this Honorable Court should

resolve the conflict.

Respectfully submitted,

ix2 a/er siey a

Non-lawyer Petitioner

Route 1, Box 45

Carlos, MN 56319

(320) 732-2290

APPENDIX A - OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH

CIRCUIT FILED JULY 1, 1996

No. $5-1437NISC

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

LARRY A. CROSSLEY,

Liberty Bank & Trust Co., etc.,

et al.,

TY a i= a sijic

vetencants-arcellicees

Oe Ne ee ee ee we Ot

Order Denying Petition for Rehearing

and Suggestion for Rehearing En Banc

The suggestion for rehearing en banc

is denied.

The petition for rehearing by the panel

is also denied.

Decided and Filed July 1, 1996

Order entered at the discretion

of the Court:

Michael E. Gains

Clerk, U.S. Court of Appeals,

Eighth Circuit

APPENDIX B - OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH

CIRCUIT FILED JANUARY 10, 1996

No. 95-1437

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

LARRY A. CROSSLEY,

Plaintiff-Appellant,

Vv.

Liberty Bank & Trust Co., etc.,

et al.,

Defendants-Appellees.

Submitted: December 29, 1995

Filed: January 10, 1996

Before WOLLMAN, MAGILL, and

HANSEN, Circuit Judges.

PER CURIAM.

Larry Crossley appeals from the

district court’s? orders granting summary

judgment in favor of defendants, and

denying his motion for reconsideration.

Having carefully reviewed the record and

the parties’ briefs, we conclude the

judgment of the district court was

correct. Accordingly, we affirm. See 8th

Cir. R. 478.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH COURT.

The Honorable Mark W. Bennett, United

tes District Judge for the Northern

trict of Iowa.

—

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.